The Theory of Value Dilemma: A Critique of the Economic Analysis of Criminal Law

Abstract

The economic conception of deterrence enjoins us to grade punishments not in proportion to the intrinsic reprehensibility of various forms of wrongdoing but rather in proportion to the goodness of the consequences that punishing them will produce. This paper, however, argues that the economic theory lacks the power, conceptually or practically, to generate results different from the ones generated by perceptions of intrinsic reprehensibility. The economic conception of deterrence presupposes a consequentialist theory of value that specifies what forms of behavior are disvalued and how much. It is perfectly compatible with the economic position for any individual (and any community of individuals) to derive such a theory from the intuitive apprehension of the intrinsic reprehensibility of different forms of wrongdoing. The best understandings of how individuals do and should make decisions under conditions of uncertainty, moreover, predict that decisionmakers who make deterrence judgments informed by a theory of value so derived will reach results identical to the ones they would have reached had they simply punished in proportion to their perceptions of the intrinsic reprehensibility of different forms of wrongdoing. The normative upshot is that deterrence theory can never be said to furnish a persuasive reason for supporting more or less punishment than otherwise seems just.